Last week the headlines of various international media, including the BBC, Reuters and Jeune Afrique, featured the story of an ultimatum issued by the UN peace keeping force in the DR Congo (MONUSCO) over allegations of mass rape committed by the Congolese army (FARDC) in the town of Minova in November 2012. The alleged rapes were committed by fleeing/retreating FARDC troops in the wake of the M23 rebel advance and take-over of Goma. Unless “swift legal action” is taken by the end of March, MONUSCO says, it will stop working with the two battalions identified as harboring the perpetrators of rape.

This is, of course, good news. Surely, perpetrators of crimes must be prosecuted and convicted, especially when they serve in the national armed forces. Moreover, the ultimatum is grounded in a conditionality policy, which stipulates that army units that commit human rights abuses should receive no MONUSCO support (such as transport and rations.)

Yet, this ultimatum is also rather discomforting. Similarly to other calls from human rights advocacy outfits to end impunity for rape, it tends to portray the task at hand as a simple one: “find the perpetrators, put them to trial and convict them – now”. Yet, everywhere in the world, rape is one of the most difficult crimes to investigate. Given poor investigative capacities and the lack of vital technologies, such as DNA analysis, investigating rape crimes is even more challenging in a context like the DRC. In the specific case of Minova, the fact that the alleged crimes were committed in the midst of a mass of disorganized troops on the move, does not make the task any easier.

This context requires that the evidence on which this ultimatum rests come under careful scrutiny. This is particularly so in light of the fact that investigations by the Military Prosecutor’s Office of the DRC are ongoing, and therewith, as of yet, incomplete. The Military Prosecutor’s Office conducted two missions in December and February, in the course of which they questioned 548 witnesses. However, based on its own-parallel-investigations, the UN now claims to “have identified a number of perpetrators.” This is certainly a positive development.  Nonetheless, we wonder, what they will do with this evidence—evidence that is presumably based on systematic and thorough investigations—besides using it to put pressure on the Congolese government in their calls for “swift legal action”? In sum, what exactly, is the UN calling for, and what is it doing to guide the Prosecutor’s Office in the quest for justice through legal action?

For if, indeed, the UN is not assisting the DRC’s Military Prosecutor’s Office to identify the perpetrators based on their own, apparently more effective, investigations, then the assurances of the Congolese Minister of Defense that “the offenders will be severely punished,” fills us with unease. As is well known (and frequently emphasized by the very actors calling for the end of impunity) the Congolese justice system is seriously flawed in several respects: It is characterized by substantial violations of fair trial procedures and deficient standards of evidence, with convictions too often reflecting the marginalized position of the convict, rather than his/her culpability. This arbitrary nature of the justice system is also evident in the trials of sexual violence cases. In recent years, such cases are often addressed in donor-funded “mobile courts”, which are geared towards trying a maximum number of cases in a relatively short time-span. A recent study by Douma and Hilhorst found that only half of the convictions in sexual violence cases in the sample that they researched had sufficient evidentiary backing, leading them to conclude that “suspects are likely to be convicted, regardless of the evidence presented to sustain the case”.

Douma and Hilhorst’s study corroborates our own research findings on accountability practices in the FARDC. We have found that when there is pressure to apprehend suspects, whether from the commandment, politicians, or international actors, a number of scapegoats are often selected  from amongst the most marginalized of the lower ranks, or from those soldiers who (for various reasons) are disliked by their commanders. In this context, the ultimatum by the UN creates an elevated risk that the FARDC will resort to the strategy of showcasing “token suspects” in order to satisfy external pressures and show the world that “something is being done”.

Importantly, a scenario in which scapegoats are presented in order to comply with MONUSCO’s demand for quick convictions, would further reduce the already limited confidence that FARDC soldiers have in the military justice system. Amongst FARDC staff, military justice practices are widely perceived as unpredictable, unfair, and heavily influenced by favoritism and power relations. This lack of legitimacy tends to undermine any possible effects of deterrence, since it feeds sentiments that it does not matter (in terms of juridical consequences) whether one commits an abuse or not, as “you might just end up in jail anyway”. At the same time, those with high-level connections are confident that they can avoid justice, should they be apprehended.

Are we suggesting, then, that calls for perpetrators to be persecuted should be stopped? Certainly not. We are strongly in favor of a solution that includes prosecutions, yet we argue for a more nuanced approach—one that is less focused on quick, visible and measurable results in terms of numbers of convictions, (as is also the focus of the mobile courts system), and prioritizes due process. This would entail much greater investments in improving investigative capacity, guaranteeing minimum fair trial standards, and raising the standards of evidence. Furthermore, we call for an approach that focuses more strongly on command responsibility and prevention (such as putting more effort into the training of lower-level commanders) rather than only on placing individual perpetrators behind bars. We also welcome more systematic and wide-spread efforts at ending impunity, instead of those concentrated on a few high-profile cases that promise to attract mass media attention.

Furthermore, we call for greater consistency on the part of the UN in their policy vis-à-vis the FARDC, which has often been inconsistent and ad-hoc. The investigations into the rapes allegedly committed by the troops of Lt.Col. Kifaru in Abala and Nyakiele (Fizi) in June 2011 are a case in point. After deserting from the Kananda regimentation centre, Kifaru fled into the mountains, while his c. 200 troops committed serious human rights violations on the way. Whereas there was initially doubt over the numbers of those raped (with rape claims rapidly augmenting after MSF arrived 10 days after the incident) the UN later declared to the press they found evidence of mass rape. The UN hinted at the figure of 121 victims (a number apparently not corroborated, as the 2012 report of the UNSG on conflict-related sexual violence stated that “it has been difficult to ascertain the scope and magnitude of the incidents”). However, there was sufficient evidence that large-scale abuses had been committed, prompting the South Kivu Military Prosecutor’s Office to launch investigations. These were nonetheless stopped, due to pressure from ex-CNDP circles. A few months later, Kifaru was appointed commander of the 111thregiment. The UN chose not to publicly react to these events. Certainly, it is understandable that a peacekeeping mission pragmatically operates within the confines of the host-country’s political context, yet events such as these evoke an image of the UN’s inconsistency among local actors. In this case, many (non-ex-CNDP) FARDC soldiers perceived the UN’s silence as evidence that the mission was politically biased.

In conclusion, we call for more consistency and responsible engagement in addressing rape committed by the FARDC, which is an issue of vital importance in any defense reform effort. While we share the UN’s urgent demand for ending impunity for the crime of sexual violence, we insist that efforts to do so are carefully considered and aim for structural, longer-term change, and, importantly, also reflect a responsibility towards soldiers who risk being tried unfairly and arbitrarily. This implies that the lack of fair trial procedures should be criticized with equal conviction when it comes to military suspects as is the case with civilians. We fear that a situation has been created in which efforts to address impunity are measured in a simplistic manner by the amount of uniformed men put behind bars. We believe that this not only risks violating the human rights of many soldiers, but is ultimately also counterproductive to the efforts to combat sexual violence, as well as other human rights offences, in the DRC.

Maria Eriksson Baaz is Associate Professor at the Nordic Africa Institute and the School of Global Studies, Gothenburg University. Maria Stern is Professor at the School of Global Studies, Gothenburg University. Judith Verweijen is a PhD Candidate at the Centre for Conflict Studies at Utrecht University